Article 50

Article 50 TEU: Withdrawal of a Member State from the EU

Withdrawal from the European Union is the legal and political process whereby an EU member state ceases to be a member of the Union. Article 50 of the Treaty on European Union (TEU) states that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”.

As of August 2019, no member state has withdrawn from the EU (or the EC); however, the Government of the United Kingdom triggered Article 50 to begin the UK’s withdrawal from the EU in March 2017 following a referendum, and the withdrawal was scheduled in law to occur on 29 March 2019. Subsequently, the UK sought and was granted extensions to delay the exit date to 31 October 2019.

Three territories of EU member states have withdrawn: French Algeria (in 1962, upon independence), Greenland (in 1985, following a referendum) and Saint Barthélemy (in 2012), the latter two becoming Overseas Countries and Territories of the European Union.

Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

This provision does not cover certain overseas territories which under TFEU Article 355 do not require a full treaty revision.

Invocation
Thus, once a member state has notified the European Council of its intention to leave, a period begins during which a withdrawal agreement is negotiated, setting out the arrangements for the withdrawal and outlining the country’s future relationship with the Union. Commencing the process is up to the member state that intends to leave.

The article allows for a negotiated withdrawal, due to the complexities of leaving the EU. However, it does include in it a strong implication of a unilateral right to withdraw. This is through the fact that a state would decide to withdraw “in accordance with its own constitutional requirements” and that the end of the treaties’ application in a member state that intends to withdraw is not dependent on any agreement being reached (it would occur after two years regardless).

Negotiation
The treaties cease to apply to the member state concerned on the entry into force of the withdrawal agreement or, in the absence of such an agreement, two years after the member state notified the European Council of its intention to leave, although this period can be extended by unanimous agreement of the European Council.

The leaving agreement is negotiated on behalf of the EU by the European Commission on the basis of a mandate given by the remaining Member States, meeting in the Council of the European Union. It must set out the arrangements for withdrawal, taking account of the framework for the member state’s future relationship with the EU, though without itself settling that framework. The agreement is to be approved on the EU side by the Council of the EU, acting by a qualified majority, after obtaining the consent of the European Parliament. For the agreement to pass the Council of the EU it needs to be approved by at least 72 percent of the continuing member states representing at least 65 percent of their population.

The agreement is concluded on behalf of the Union by the Council and must set out the arrangements for withdrawal, including a framework for the State’s future relationship with the Union, negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. The agreement is to be approved by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. Should a former Member State seek to rejoin the European Union, it would be subject to the same conditions as any other applicant country.

Remaining members of the EU would need to manage consequential changes over the EU’s budgets, voting allocations and policies brought about by the withdrawal of any member state.

Failure of negotiations
This system provides for a negotiated withdrawal, rather than an abrupt exit from the Union. This preference for a negotiated withdrawal is based on the expected complexities of leaving the EU (including concerning the euro) when so much European law is codified in member states’ laws. However, the process of Article 50 also includes a strong implication of unilateral right to withdraw. This is through the fact the state would decide “in accordance with its own constitutional requirements” and that the end of the treaties’ application in the said state is not dependent on any agreement being reached (it would occur after two years regardless). In other words, the European Union can not block a member state from leaving.

If negotiations do not result in a ratified agreement, the seceding country leaves without an agreement, and the EU Treaties shall cease to apply to the seceding country, without any substitute or transitional arrangements being put in place. As regards trade, the parties would likely follow World Trade Organization rules on tariffs.

Re-entry or unilateral revocation
Article 50 does not spell out whether the Member States can rescind the notification of their intention to withdraw during the negotiation period while their country is still a Member of the European Union. However, the President of the European Council said to the European Parliament on 24 October 2017 that “deal, no deal or no Brexit” is up to Britain. Indeed, the prevailing legal opinion among EU law experts and the EU institutions themselves is that a member state intending to leave may change its mind, as an “intention” is not yet a deed and intentions can change before the deed is done.
Until the Scottish Government did so in late 2018, the issue had been untested in court. On 10 December 2018, the European Court of Justice ruled that it would be “inconsistent with the EU treaties’ purpose of creating an ever closer union among the peoples of Europe to force the withdrawal of a member state” against its wishes, and that consequently an Article 50 notification may be revoked unilaterally by the notifying member without the permission of the other EU members, provided the state has not already left the EU and provided the revocation is decided “following a democratic process in accordance with national constitutional requirements”.

The European Parliament resolution of 5 April 2017 on negotiations with the United Kingdom following its notification that it intends to withdraw from the European Union states, “a revocation of notification needs to be subject to conditions set by all EU-27, so that it cannot be used as a procedural device or abused in an attempt to improve on the current terms of the United Kingdom’s membership.”
The European Union Policy Department for Citizens’ Rights and Constitutional Affairs has stated that a hypothetical right of revocation can only be examined and confirmed or infirmed by the EU institution competent to this purpose, namely the CJEU.
In addition, the European Commission considers that Article 50 does not provide for the unilateral withdrawal of the notification. Lord Kerr, the British author of Article 50, also considers the process is reversible as does Jens Dammann. Professor Stephen Weatherill disagrees. Former Brexit Secretary David Davis has stated that the British Government “does not know for sure” whether Article 50 is revocable; the British prime minister “does not intend” to reverse it.

Extension of the two years time from notification to exit from the union still requires unanimous support from all member countries, that is clearly stated in Article 50(3).

Should a former member state seek to rejoin the European Union after having actually left, it would be subject to the same conditions as any other applicant country and need to negotiate a Treaty of Accession, ratified by every Member State.

Background

The states who were set to accede to the EU in 2004 pushed for an exit right during the 2002–2003 European Convention. The acceding states wanted the option to exit the EU in the event that EU membership would adversely affect them. During negotiations, eurosceptics in states such as the UK and Denmark subsequently pushed for the creation of Article 50.

Article 50, which allows a member state to withdraw, was originally drafted by Scottish cross-bench peer and former diplomat Lord Kerr of Kinlochard, the secretary-general of the European Convention, which drafted the Constitutional Treaty for the European Union. Following the failure of the ratification process for the European Constitution, the clause was incorporated into the Treaty of Lisbon which entered into force in 2009.

Prior to this, no provision in the treaties or law of the EU outlined the ability of a state to voluntarily withdraw from the EU. The absence of such a provision made withdrawal technically difficult but not impossible. Legally there were two interpretations of whether a state could leave. The first, that those sovereign states have a right to withdraw from their international commitments; and the second, the treaties are for an unlimited period, with no provision for a withdrawal and calling for an “ever closer union” – such commitment to unification is incompatible with a unilateral withdrawal.
The Vienna Convention on the Law of Treaties states where a party wants to withdraw unilaterally from a treaty that is silent on secession, there are only two cases where withdrawal is allowed: where all parties recognise an informal right to do so and where the situation has changed so drastically, that the obligations of a signatory have been radically transformed.

TFEU Article 355

TFEU Article 355(6), introduced by the Treaty of Lisbon allows the status of French, Dutch and Danish overseas territories to be changed more easily, by no longer requiring a full treaty revision. Instead, the European Council may, on the initiative of the member state concerned, change the status of an overseas country or territory (OCT) to an outermost region (OMR) or vice versa.

Withdrawals

Algeria
French Algeria had joined the European Communities as part of the French Republic (since legally it was not a colony of France, but rather one of its overseas departments). Upon independence in 1962, Algeria left France and thus left the European Communities.

Greenland
Greenland chose to leave the EU predecessor without also seceding from a member state. It initially voted against joining the EEC when Denmark joined in 1973, but because Denmark as a whole voted to join, Greenland, as a county of Denmark, joined too. When home rule for Greenland began in 1979, it held a new referendum and voted to leave the EEC. After wrangling over fishing rights, the territory left the EEC in 1985, though remains subject to the EU treaties through the association of Overseas Countries and Territories with the EU. This was permitted by the Greenland Treaty, a special treaty signed in 1984 to allow its withdrawal.

Saint Barthélemy
Saint Martin and Saint-Barthélemy in 2007 seceded from Guadeloupe (overseas department of France and outermost region (OMR) of the EU) and became overseas collectivities of France, though at the same time remained OMRs of the European Union.
Later, the elected representatives of the island of Saint-Barthélemy expressed a desire to “obtain a European status which would be better suited to its status under domestic law, particularly given its remoteness from the mainland, its small insular economy largely devoted to tourism and subject to difficulties in obtaining supplies which hamper the application of some European Union standards.” France, reflecting this desire, requested at the European Council to change the status of Saint Barthélemy to an overseas country or territory (OCT) associated with the European Union. The status change came into effect from 1 January 2012.

United Kingdom
As of May 2019, Brexit is the first and only invocation of Article 50.

The British government led by David Cameron held a referendum on the issue in 2016; a majority voted to leave the European Union. On 29 March 2017, Theresa May’s administration invoked Article 50 of the Treaty on the European Union in a letter to the President of the European Council, Donald Tusk. The UK was due to cease being a member at 00:00, 30 March 2019 Brussels time (UTC+1), which would have been 23:00 on 29 March British time. Following the UK parliament’s failure to ratify the leaving deal negotiated with the European Council by the UK government, an extension of the deadline was agreed.

The terms of withdrawal have not yet been negotiated, and the UK remains a full member of the European Union. May said that the UK government would not seek permanent single market membership, and promised a Great Repeal Bill that would repeal the European Communities Act and would incorporate existing European Union law into the domestic law of the UK.

Until the withdrawal from the European Union is affected, the UK remains a member of the EU continuing to fulfil all EU-related treaties and must legally be treated as a member.